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HomeMy WebLinkAbout93-527 LaserThomas A. Laser 2296 Bullfrog Road Fairfield, PA 17320 Dear Mr. Laser: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG. PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 19, 1993 93 -527 Re: Conflict, Public Official /Employee, Township Supervisor, Use of Authority of Office or Confidential Information, Proposed Development, Real Estate Interest of Public Official or Immediate Family Member, Subclass. This responds to your letters of February 11, 1993, and March 9, 1993, in which you requested advice from the State Ethics Commission. Issue: Whether a township supervisor would have a conflict of interest, or would belong to a qualifying subclass of landowners so as to be within the statutory exception to the definition of "conflict" or "conflict of interest," in matters pertaining to a proposed development, where the supervisor's residential property is one of many properties adjacent to the lands of the proposed development. Facts: As a Township Supervisor for Freedom Township in Adams County, serving a six year term which began in January, 1991, you request an advisory from the State Ethics Commission as to whether you would have a conflict of interest under the following facts. A developer has submitted a preliminary development plan for Township approval or disapproval. The developer proposes to build a conference and retreat center that would accommodate approximately 1200 people overnight. The center would be built on about 500 acres owned by the developer, which acreage straddles two Townships: approximately one - fourth of the acreage is in Freedom Township, and the balance is in Liberty Township. The developer's attorney has petitioned you to recuse yourself, alleging,: inter alia, that you have a conflict of interest because of the proximity of your land to the proposed Thomas A. Laser March 19, 1993 Page 2 development. The Petition for Rdcusal has not been submitted, although you have submitted the following language extracted verbatim from the Petition for Recusal: Mr. Laser's property line is directly abutting and adjacent to the Middle Creek Bible Conference, Inc.'s property. Mr. Laser has repeatedly expressed concern as to the impact the subject property would have upon his own property. See Deposition Transcript of Thomas Laser taken November 25, 1992, p. 12, attached and incorporated by reference as Exhibit D. You have submitted a one -page copy of the referenced deposition testimony set forth in Exhibit D to the Petition for Recusal, which provides in pertinent part as follows: Q. Are you a resident of Freedom Township? A. Yes. Q. In terms of how the crow flies, how far is your residence from the closest point to the lands presently owned by Middle Creek Bible Conference, Inc., or Pastor and Mrs. Crowley? A. Are you talking specifically about my house or the small plot of ground that I live on? Q. The small plot of ground that you live on. A. We are adjacent to each other. My property line is their property line. Q. How much ground do you own? A. It's either 1.3 or 1.4 acres. Q. How far is your home located to the closest point of your property line which is contiguous to that of -- I'll say the Crowleys for now, if that's okay. A. Somewhere around 150 feet. Q. With regard to your own property, do you have a concern with regard to what impact, if any, the proposed development of Middle Creek will have upon your property? Thomas A. Laser March 19, 1993 Page 3 A. Yes, I think so. You state that to the best of your knowledge and belief, the developer has not submitted any material other than the Petition for Recusal to the Township or to you regarding the conflict of interest question. You have submitted a copy of a four -page "Memorandum For The Record" from you to the Freedom Township Board of Supervisors, dated February 15, 1993, which responds to the aforesaid Petition for Recusal, which Memorandum is incorporated herein by reference. The substance of your Memorandum is summarized as follows. You state your beliefs that the Petition for Recusal does not substantiate the need for your recusal, and that most of the allegations are unsubstantiated and conflict with the facts. Specifically, you set forth your denial of the following allegations: that you and /or your wife are members of the Concerned Citizens for Responsible Development Association (CCRD); that you "denigrated" Pastor and Mrs. Crowley (who appear to own all or a portion of the lands proposed to be developed); that you indicated that the approval of the project would change Adams County (as opposed to having the potential to change Adams County); that the abutment of your property to the proposed development would constitute a per se conflict of interest (as to which you note the pendency of your advisory request to this Commission); that your election platform included campaign promises ensuring that the project would never be built; that you signed a petition designed to prevent the building of a sewage treatment plant integral to the project; that you met with the Sewage Enforcement Officer of Freedom Township to persuade him to issue an opinion that the planning module should be disapproved; and any implied wrongdoing resulting from your attendance at a neighborhood open house hosted by the CCRD president. The precise issue which you have presented for consideration is whether the proximity of your land to the proposed development, per se, constitutes a conflict of interest. It is noted that during the pendency of your request for an advisory on this issue, third party correspondence has been received by the Commission which correspondence has attempted to submit other facts for consideration. You have indicated your awareness of this situation and have assured this Commission that the conflict of interest issue is just one of several issues that have been raised and is only one of many possible factors that must be considered in the overall decision regarding recusal, but that it is the only aspect of this matter to which you believe the Ethics Law would have application. In this regard, you have reaffirmed that you, and other Township Supervisors in such circumstances, need guidance; that your request is narrow and straight - forward; and that it contains all pertinent information regarding this simple issue. You have submitted a map of the lands involved in the proposed Thomas A. Laser March 19, 1993 Page 4 development project and "surrounding properties, upon which you have identified twenty -two properties abutting the project including your own. Said map is incorporated herein by reference. Noting that you have 25 years of experience in government and the private sector, much of it involving procurement and contracting, you state that you have tried to be meticulous regarding conflicts of interest. Before taking office, you studied the Ethics Law as well as the related guidance to supervisors prepared by the Pennsylvania Association of Township Supervisors. You state that you concluded then -- and believe now -- that you do not have a conflict of interest. However, it is your realization of the possibility that you could be mistaken that" has prompted you to request the Commission to provide a ruling in this matter. You have presented the following reasoning'to support your position. You first state that Freedom Township is the smallest, least populated Township (700 people) in Adams County. Because this development project would bring in substantially more people than live in the whole Township, you state that it concerns a lot of the citizens. You posit that the Ethics Law sets forth the principle that knowledge and concern do not constitute a conflict of interest, citing the following portion of Section 1(b) of the Ethics Law: It is recognized that many public officials, including most local officials and members of the General Assembly, are citizen - officials who bring to their public office the knowledge and concerns of ordinary citizens and taxpayers. 65 P.S. §401(b). Next, you cite the following portion of the exclusionary language in the definition of "conflict" or "conflict of interest," at Section 2 of the Ethics Law: "Conflict" or "conflict of interest" does not include an action. . . which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee. . 65 P.S. 5402. You state your belief that you belong to a subclass or group of citizens who have a common characteristic. Specifically, you note that your wife and you own one of twenty -two properties which directly abut the proposed project, consisting of about ten properties in Freedom Township and twelve in Liberty Township. You Thomas A. Laser March 19, 1993 Page 5 reference the map which you have submitted, noting that your wife and you own the property identified as number 17. Additionally, you note that there are about twenty -two more properties which abut the proposed development except for the narrow, rural road running between these properties and the developer's property. In sum, you state that if you owned a competing business and would be the developer's only competitor, then the Ethics Law would clearly indicate that you would have a conflict of interest. However, you state that you are just one of many property owners -- and have nothing more to gain or lose than the others -- and you therefore believe the Ethics Law indicates that this is not a conflict of interest. Finally, you note that the issue has additional ramifications. Candidates for Supervisor must register soon for the fall election, and you believe that guidance is needed as to whether conflict of interest depends exclusively-on geographical proximity, or whether it depends on the presence /size of a "reasonably homogenous subclass or group of citizens." You proffer your belief that if the Commission finds that proximity is the determining factor, that finding would mean owners of about 45 properties (up to 90 citizens) would be banned from participating as citizen - officials in their community government, particularly on key issues that determine the character and pace of development in their community. Based upon all of the above, you request an advisory from the State Ethics Commission. Discussion: Before addressing your inquiry, two points must initially be noted. First, it is noted that pursuant to Sections 7(10) and (11) of the Ethics Law, 65 P.S. 5407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. Third part submissions are not considered. However, an advice is only as good as, and affords a defense only to the extent that, the requestor has truthfully disclosed all of the material facts to the Commission. Second, in issuing the advice based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor may it speculate as to facts which have not been submitted. It is the burden of the requestor to provide all of the material facts needed to answer the inquiry. 65 P.S. 5407(10), (11); See also, Confidential Opinion 90 -012 (Requestor bears the burden of supplying factual circumstances in appeal of Advice). As a Township Supervisor for Freedom Township in Adams County, Pennsylvania, you are a public official as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Thomas A. Laser March 19, 1993 Page 6 Section 3. -' °Restricted Activities. (a) No public official _or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. Definitions. "Conflict or conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of. himself; a member of his immediate family or a business with which he or a member of his immediate family is associated. - "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting- of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part .that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept anything of monetary value based upon. the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. Section 3(j) of the. Ethics Law provides as follows: Section 3. Restricted activities. (j) Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, Thomas A. Laser March 19, 1993 Page 7 order or ordinance, the following procedure shall be employed. Any public official or public employee, who in the discharge of his official duties, would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed . with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest, and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. If a conflict exists, Section 3(j) requires the public official /employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. In the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s), then in that event participation is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91-523 - S. In applying the above provisions of the Ethics Law to the circumstances which you have submitted, pursuant to Section 3(a) of the Ethics Law, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. In this case, the statutory elements for a conflict of interest are present. In addition to being a Township Supervisor Thomas A. Laser March 19, 1993 Page 8 who would pass upon matters involving the proposed development, you own and reside upon property which abuts the very lands where the proposed development would be built. Under such circumstances, the use of the authority of office may very well result in a private pecuniary benefit to you to the extent the proposed development could affect the value of your land. However, this only answers the threshold question. The second question is whether, under the facts which you have submitted, you would fit within the exclusionary language of the definition of "conflict" or "conflict of interest" as a member of a qualifying subclass, affected to the same degree as all other subclass members. This second issue is a two -prong test. First, the existence of a qualifying subclass must be established. Second, it must be factually established that the public official -- in this case you -- would be affected to the same degree as all other members of the subclass. ' In this case, it is arguable that the qualifying subclass could be established under the first prong of the subclass exclusion. However, the facts which have been submitted simply fail to meet the burden which you, as the requestor, bear to demonstrate that you would be affected by the proposed development to the same degree as all other members of the subclass. You have proffered your belief that such would be the case, but the submitted facts simply are insufficient to support your belief. The map which you have submitted is graphically helpful, but it does not establish the degree or degrees to which you or the other members of your proffered subclass would be affected by the proposed development. Therefore, based upon the facts which you have submitted, the necessary conclusion is that you would have a conflict of interest as to matters involving the proposed development and that the facts which you have submitted fail to meet your burden of establishing that you would fit within the exclusionary language pertaining to subclasses, found within the definition of "conflict" or "conflict of interest." Finally, in response to your request for guidance on this issue, the subclass exclusion depends upon what the statutory language states that it depends upon. That is, it depends upon membership in a qualifying class of the general public or a subclass consisting of an industry, occupation or other group -- the first prong -- with the affect of the proposed action upon you being to the same degree as that upon the other members -- the second prong. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed Thomas A. Laser March 19, 1993 Page 9 herein is the applicability of the Second Class Township Code. Conclusion: As a Township Supervisor for Freedom Township in Adams County, Pennsylvania, you are a public official subject to the provisions of the Ethics Law. Based upon the facts which you have submitted, you would have a conflict of interest in matters pertaining to the proposed development of a conference and retreat center on approximately 500 acres abutting your residential property. In each instance of a conflict of interest, you would be required to abstain from any participation and to fully satisfy the disclosure requirements of Section 3(j) as set forth above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. such. This letter is a public record and will be made available as Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. Sincerely, Vincent J. Dopko Chief Counsel